Opinion
C.A. No. 10A-10-007 FSS.
Submitted: April 14, 2011.
Decided: July 26, 2011.
Upon Appeal From The Industrial Accident Board AFFIRMED , in part, REVERSED and REMANDED , in part.
MEMORANDUM OPINION AND ORDER
This appeal from the Industrial Accident Board presents a new question: Is a partially disabled worker disqualified from receiving benefits because he accepts a buyout and, rather than looking for a lower paying job, he returns to vocational school in order to train for a job that comes closer to paying the salary he earned before his industrial injury? Otherwise, the case presents a procedural question, probably unique to this case, about the way Chrysler raised its bankruptcy before the Board.
I.
In 2001, Kane developed bilateral carpel tunnel syndrome and trigger fingers due to repetitive actions as an assembler for Chrysler. In 2001, he had corrective surgery on both hands. In 2008, he suffered another injury and again had surgery on his right hand. Beginning November 24, 2008, Employer paid total disability benefits of $592.25 per week based on an average weekly wage in excess of $888.38.
In December 2008, Employer was shutting down the Newark Assembly Plant and offered Claimant a buyout as part of its downsizing. Employer's representative testified that it was not one of its retirement program. In light of his injury, Claimant accepted the buyout. Before the plant closed, he enrolled in Del-Tech Community College to finish an HVAC degree and certification program. Claimant testified that, due to his injuries, he would be unable to find adequate employment without the HVAC certification. That is not contested.
On September 30, 2009, Employer filed a Petition to Terminate Benefits alleging that Claimant could return to medium-duty work. On December 30, 2009, Claimant filed a Petition to Determine Additional Compensation Due seeking compensation for ten percent permanent impairment to both arms. The Board heard both petitions on June 4, 2010.
Based on medical testimony, the Board agreed that Claimant had ten percent permanent impairment of each arm. It offset the right arm by five percent for a June 2004 payment. Employer alleged that the left arm's permanency was related to the 2001 claim that was in bankruptcy. Claimant objected, arguing that Employer first raised bankruptcy by telephone the night before the hearing. Having no evidence to determine if the 2001 injury is covered by bankruptcy, the Board made its factual findings, leaving the bankruptcy's implications, if any, to the federal bankruptcy court in New York.
After ruling that Claimant is no longer entitled to total disability, the Board analyzed the partial disability claim. Accepting Employer's expert's opinion that Claimant is able to work in a medium-duty capacity lifting no more than fifty pounds and not performing repetitive pushing or pulling with the right hand, the Board suggested that Claimant remains partially disabled. Employer offered its labor market survey specifying jobs available to Claimant based on Claimant's training, experience, and restrictions. Salaries for those jobs ranged from $396.24 to $640.80 per week. The HVAC positions were the highest paying, but even this pay was lower than Claimant's assembler wages.
The Board ruled that Claimant removed himself from the workforce voluntarily in order to complete his education, not because of his injury, and that his inability to secure employment was due to his student status rather than the injuries. Specifically, the Board held,
Claimant's current inability to secure employment is attributable to his status as a student, as opposed to any decrease in his earning power caused by the cumulative detrimental effect of his work activities.
Finding no evidence that the injury forced Claimant out of the job market, the Board denied his request for partial disability benefits. The Board did offer that, if upon re-entering the workforce Claimant shows a loss of earning potential, he may then be eligible. Claimant appeals the partial disability determination and the Board's decision to allow the bankruptcy defense.
Claimant appealed two other issues that are now non-contentious. First, the Board adjusted Claimant's average weekly wage to $767.77 based on a strict reading of the applicable statute. Claimant appealed the calculation and recent case law supports his position. Employer acknowledges the change and requests that this court remand on this issue. Second, the Board awarded fees that remained unpaid at the time of appeal. Employer has now paid.
II.
The standard of review for an appeal from the Board is limited to errors of law and whether the decision is supported by substantial evidence. Evidence is substantial when a reasonable person might accept it as adequate to support the conclusion. This court will not weigh the evidence, determine witnesses' credibility, or make its own factual findings. Absent an error of law, the standard of review is abuse of discretion. The Board has abused its discretion only when its decision has "exceeded the bounds of reason in view of the circumstances."III.
When an employer petitions to terminate benefits, the employer carries the burden of proving that a claimant is not partially disabled where "there is evidence that in spite of improvement, there is a continued disability." Claimant's physical condition is the threshold issue in the partial disability question. The Board here did not clearly decide Claimant's disability status, but suggested that partial disability persists. The record, including all expert testimony, contains substantial evidence supporting a finding of partial disability.Partial disability benefits reimburse an employee for lost earning power due to a work-related injury. Accordingly, traditional retirement precludes an employee from receiving benefits. Voluntary retirement and retirement benefits do not, however, preclude partial disability benefits if an employee wishes to continue working and actively seeks work elsewhere after retirement. Actual employment is not required. Claimant is entitled to partial disability benefits where an industrial injury probably diminished claimant's earning capacity.
Gen. Motors Corp. v. Willis, 2000 WL 1611067, *3 (Del. Super. 2000).
Id.
Id.
Rozek v. Chrysler, LLC, 2010 WL 5313229, *2 (Del. Super. 2010).
Sharpe v. W.L. Gore and Assoc., 1998 WL 438796, *5 (Del. Super. 1998).
Earning capacity is based on employee's age, education, background, experience, and the nature and availability of that sort of work. The Employer's labor market survey tacitly concedes that the injury significantly reduced Claimant's potential income. Also, the Board seemingly ignored evidence that Claimant's return to school was to prepare for a new trade and was partly motivated by the injury. Further, the Board did not pay deference to the legal notion that a claimant should not be precluded from receiving compensation simply because he becomes a full-time student while disabled.
Id.
4-84 Larson's Workers' Compensation Law § 84.04D[2] n. 12 (citing International Paper Co. v. McGoogan, 504 S.W.2d 739 (Ark. 1974)).
In International Paper Co. v. McGoogan, a summer employee was injured and awarded temporary total disability benefits. When claimant returned to school, as intended at the time of employment, employer suspended payments despite continuing disability. The Supreme Court of Arkansas held claimant was entitled to benefits during the school term because denying them would "violate the spirit and intent of the Workmen's Compensation Law by penalizing a claimant for attempting through the furtherance of his education to limit the effect of his disability."
Int'l Paper Co., 504 S.W.2d at 741.
Similarly here, Claimant's return to school does not disqualify him from disability benefits as a matter of law. And, the record supports only one reasonable conclusion as to the facts: Facing significantly decreased earning capacity due to the workplace injury, Claimant returned to school to obtain an HVAC certification. Employer's labor market survey establishes Claimant's decreased earning capacity and the HVAC field's higher salaries. By retraining, Claimant is simply mitigating damages like any injured party.
See, e.g., Counts v. Acco Babcock, Inc., 547 A.2d 131 (Del. 1988) (Walsh, J.) Order at 1.
IV.
As presented above, the Board found ten-percent permanent impairment to Claimant's left arm. Employer maintains that this claim is extinguished by its bankruptcy, but its position is unclear. It asserts that "it did not have to" raise a bankruptcy defense:
As a member of the bar, Chrysler's counsel simply placed information before the Board at the hearing in June that confirmed that the US District Court for the Southern District of New York issued a decision that, `[a]ll existing employee benefit plans, retiree benefit plan and workers' compensation benefits not previously terminated by the Debtors [Chrysler, LLC], or assumed by the Debtors and assigned to New Chrysler [Chrysler Group, LLC], were terminated on or before the Effective Date. (Emphasis and alteration in original).
"Information confirming that all workers' compensation claims that were not previously terminated or assigned to Chrysler Group, LLC was available in an Order that purported to seal the fate of certain claims."
As mentioned, Claimant argued that Employer's bankruptcy argument came too late, thus the "defense" was waived. He appeals the Board's decision to allow "a bankruptcy defense to bar certain benefits" and further alleges that the Board "deferred any award based on the Employer's bankruptcy argument." It is not shown that a discharge, assignment or termination in bankruptcy can be waived by a debtor. But, that does not have to be decided here.
Actually, having no evidence to determine the validity of Chrysler's position, whatever it was, the Board left it to the bankruptcy court. Specifically, the Board held,
The Board has no evidence presented from which it is able to determine whether the 2001 injury is covered by the stay or not. The answer to that question lies with the United States Bankruptcy Court of the Southern District of New York, not this Board.
Although the Board acknowledged Employer's bankruptcy argument, it also noted that Employer did not produce evidence supporting it.
Irrespective of whether the Board abused its discretion by letting Employer claim bankruptcy on the eve of the hearing, ultimately the Board, in effect, ruled in Claimant's favor as to the bankruptcy argument. Contrary to Claimant's position, the Board did not defer or deny any award based on Employer's bankruptcy position. In the end, the Board found "Dr. Rodgers'[s] unrebutted testimony is persuasive, so Claimant is entitled to . . . ten percent permanent impairment benefits of his left upper extremity due to the sum of total cumulative detriment effect of his work activities with Employer." Thus, Claimant established his claim under Delaware law. If the claim, nonetheless, falls under the bankruptcy, the bankruptcy court can say so.
V.
Based on the above, the Industrial Accident Board's June 22, 2010 decision granting Claimant ten percent impairment benefits for his left upper extremity is AFFIRMED. Claimant's bankruptcy argument is moot. The denial of partial disability benefits and wage calculation is REVERSED and REMANDED for further findings consistent with this opinion. Specifically, the Board must calculate the partial disability benefits to which Claimant is entitled and recalculate Claimant's average weekly wage.
IT IS SO ORDERED.